Complainant

Respondent

Parties

Trevor  Dunican

C. Rutter Custom Software Limited

Representatives

Caoimhe Ruigrok BL, instructed by James P Evans Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045719-009

18/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00045719-010

18/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00045719-011

18/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00051747-001

19/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051747-002

19/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051747-003

19/07/2022

The complainant alleges, inter alia, unfair constructive dismissal due to breach of contract and the unreasonable behaviour of the respondent. Dismissal is in dispute.

The complainant commenced employment with the respondent on 6 October 2014 as a software developer. The complainant reported into Mr Babar Shahzad, Managing Director. Mr Shahzad was located at the Irish office. A second director, Mr Ageel Shad, was based in Pakistan and was not involved in the day to day running of the business. There were only two employees employed in Ireland: the complainant and a senior software engineer. At the time of dismissal, the complainant was earning €38,000 per annum.

CA-00045719-009 – Terms of Employment

This complaint was referred to the Workplace Relations Commission on 18 August 2021 while the complainant was still in employment. The complainant stated that his contract of employment provided for weekly payment intervals but that this was not being adhered to and that the respondent had tried to change this to monthly payment intervals without his consent.

For several weeks commencing from June 2021 the employee did not receive his weekly wages on time. This was due to the respondent’s bank account being temporarily frozen. The respondent resolved the non-payment of wages issue by September 2021 and the employee was paid all that was due to him. The complainant continued to receive his wages thereafter on a weekly basis.

In cross-examination, the complainant accepted that the non-payment of wages was confined to a two-month period and that by early September 2021 any wages due to the complainant had been paid in full. The complainant confirmed that no further issue arose regarding the payment of his wages thereafter.  It was put to the complainant that what the respondent had requested was a move to monthly payslips rather than monthly payment intervals. It was accepted by the complainant that he continued to receive payment in weekly intervals and that the employer did not in fact change the payment intervals.

CA-00045719-010 - Persons Performing Mobile Transport Activities

This complaint was referred to the Workplace Relations Commission on 18 August 2021 while the complainant was still in employment. The complainant stated he was required to go to a client site no more than twice a month.

In cross-examination the complainant confirmed he was not a mobile worker.  

CA-00045719-011 – Employment Equality

This complaint was referred to the Workplace Relations Commission on 18 August 2021 while the complainant was still in employment. The complainant alleges he was treated less favourably on grounds of race when he was harassed on 12 August 2021 by Mr Shad. The complainant alleges that he was asked to do things outside of his job description and was accused of conspiring with one director to undermine the other director. The complainant stated that he felt if he did not comply with this request he would not be paid. Specifically he was asked to provide Mr Shad with evidence that Mr Shadzad was engaged in inappropriate business conduct. He felt compelled to provide this information or he would have no job. The complainant felt he was being treated with indifference by Mr Shad and that the company could survive without him if he did not do as he was told.

In cross-examination the complainant stated that his complaint of different treatment was on the basis that Mr Shad spoke to him differently. He spoke down to him and without manners. Mr Shad was telling him to get information relating to Mr Shadzad and if he did not do as requested there would be no company. He perceived this as being done to him because he was of a different race. It was put to the complainant that this had nothing to do with his race.

CA-00051747 – 001 – Unfair Dismissal

This complaint was presented to the Workplace Relations Commission on 19 July 2022. The complainant alleges unfair constructive dismissal on 24 January 2022 due to the unreasonable behaviour of the respondent and due to the undermining of the bond of trust and confidence implied into his contract.

The employee stated that there were no concerns regarding his employment until 30 June 2021. On this date, wages due to him were not paid. Mr Shad had accused Mr Shahzad of unscrupulous activities in the business account and had frozen the business account from which wages and other bills were paid.

The complainant raised the issue with Mr Shahzad who confirmed he would sort it out. Despite the reassurances, another 2 weekly payment intervals also went unpaid. The following week the complainant received one weeks pay. On querying the non-payment, Mr Shahzad stated “work and get paid or don’t work”. The following week, the complainant was not paid. However, the following week all wages due to the complainant were paid. In the interim, the complainant engaged the services of a solicitor. The solicitor wrote to the respondent expressing the complainant’s concerns and the impact the non-payment of wages was having on the complainant and his family. These letters went unanswered. The complainant was concerned at the lack of engagement of the directors and referred a complaint to the Workplace Relations Commission.

While the complainant continued to be paid from September 2021 on a weekly basis, he was unsure of the certainty of his wages as there was an ongoing dispute between the two directors. Mr Shad visited the Irish business premises and told the complainant Mr Shahzad was not to be trusted. Mr Shad alleged that Mr Shahzad had made payments from the business account to unknown entities in Pakistan and that the Garda Economic Bureau would be advised of this alleged activity. Furthermore, it was alleged that Mr Shahzad had set up another company which was benefiting from work being performed by the respondent company. Mr Shad requested the complainant to provide him with evidence of Mr Shahzad alleged inappropriate conduct. The complainant stated that he became very concerned for the future of the company. Customers were becoming anxious about the company. Rent was not being paid. The complainant started to lose faith in the directors. He felt that they were more focused on battling each other that on the future of the company. The complainant remained working for the respondent as its primary customer base was hospitals. During this time Mr Shahzad, who was normally based in Ireland, was in Pakistan. The complainant was left to do the work with his colleague in the absence of the directors. The complainant tried to get answers on business related issues without success. He was very concerned about the precarious state of the company. A meeting was set up with the respondents’ biggest customers in November 2021, but Mr Shad failed to turn up. On 2 December 2021 the mobile phones of the complainant and his colleague stopped working.

On numerous occasions the employee verbally requested payslips. In December 2021 the complainant checked his tax affairs with Revenue. He learned that the respondent had not made tax returns for him since August 2021. The complainant queried this with the respondent and sent an email on 6 and 11 January 2022 requesting payslips. He was provided with some payslips for 2021. These payslips were incorrect. Certain taxes were unpaid, and the payslips did not reflect his correct salary. This was brought to the attention of Mr Shadzad. Revised payslips were sent to the complainant. These too were wrong. The payslips indicated that the complainant had only been employed with the respondent from August 2021.

The complainant left his employment on 24 January 2022. He felt the company was not being run properly. There was no meaningful engagement from the directors. He could not trust what either director was telling him. The complainant was concerned for his livelihood and was stressed. He visited his doctor. There was no grievance procedure. The complainant stated that there was no one to complain to in any event. The complainant felt he had no option but to resign. The trust and confidence was broken between him and the respondent. The complainant felt that the directors had no regard for his employment rights.

The complainant secured a new job on 31st January 2022 on a salary of €50,000.

In cross-examination, it was put to the complainant that his resignation was on foot of two emails to the respondent regarding incorrect payslips. The complainant stated that it was not isolated to this but rather that all trust in the directors was gone and that is why he left. It was further put to the complainant that he did not utilise the grievance procedure which was contained within a handbook he signed on commencement of employment. The complainant stated that he had no recollection of receiving a handbook and even if he did, there was no point in complaining to the directors. The directors had a history of not engaging with the complainant to date. The complainant accepted that the matter concerning the non-payment of his wages had been resolved months earlier. However, he added that he was entitled to payslips and had never received them. He was entitled to have his taxes paid. The complainant denied that payslips were available on the server.

CA-00051747-003 – Annual Leave

The complainant stated that he did not receive payment for 10 days annual leave accrued but not taken on date of termination. His contract of employment provided for 21 days annual leave.

It was put to the complainant that an annual leave year is April to March and that the complainant had taken all leave accrued. The complainant stated that the annual leave year was January to December in the respondent business and that on 24 January 2022 he was owed 10 days annual leave.

CA-00051747-002 – Payment of Wages

The complainant stated he worked two back weeks on commencement of employment which was due for payment on termination of employment.

Evidence of Mr Shahzad

Mr Shahzad outlined that there was an excellent working relationship between himself and the two employees based in the Irish office, and that there were no issues until June 2021 when wages were not paid. Mr Shahzad referred to a business issue between himself and the other director, Mr Shad, which led to Mr Shad freezing the business account. Mr Shahzad understood the difficulties non-payment of wages might present for the complainant, and he arranged for payment of the complainant’s wages from his personal account for some weeks until he ran out of money. 

Mr Shahzad stated that payslips were available and saved onto the server. He received no requests for payslips from the complainant prior to December 2021. Payslips were provided to the complainant when he requested them. The respondent had changed accountants at this time. The complainant emailed Mr Shahzad saying the payslips were incorrect. Mr Shahzad requested that these payslips be corrected, and the revised payslips were then forwarded to the complainant. He heard nothing further regarding the accuracy of the payslips.

Mr Shahzad was out of the country from July 2021 to December 2021. By December 2021, he and Mr Shad had come to an agreement and the business account was then reopened. It was a bad episode, and they were now trying to get the business back on track.

Mr Shahzad accepted that taxes were not paid but that was a matter between the respondent and Revenue and a repayment plan was in place to address that. Tax returns were filed and there was never an intention not to pay what was owed.

Mr Shahzad was surprised to receive the complainant’s resignation as both directors had given assurances things would be sorted out. However, Mr Shahzad did not question the complainant’s resignation or contact the complainant thereafter.

Mr Shahzad confirmed that the complainant was not a mobile transport worker and was only required to visit client sites once or twice a month.

Mr Shahzad was unsure if the complainant was due two weeks in arrears.

Mr Shahzad confirmed the annual leave year as January to December.

Mr Shahzad was asked by the complainant why he was surprised that the complainant was leaving. Mr Shahzad replied that he was surprised the complainant was leaving as he had been trying to resolve matters for the complainant. Mr Shahzad stated that the shared drive containing the payslips was set up 3 or 4 years previously. The complainant put it to Mr Shahzad that this was untrue and added he was never aware of a filing system for payslips. Mr Shahzad stated that when he learned the payslips were incorrect, he asked his accountant to rectify them. He did not personally check them all. In response to a question as to why taxes had not been paid, the respondent stated that a repayment plan had been agreed with Revenue and it was the intention of the respondent to resolve that issue. The respondent stated that things had been handled badly and it was taking time to get back on track.

Mr Shahzad confirmed that relationships were strained during the months June 2021 to January 2022. There was little communication, and everyone seemed to be working in silos. It was a difficult period for everyone.

CA-00045719-009 - Terms of Employment

For several weeks commencing June 2021 the employee did not receive his weekly wages on time. This was due to the respondent bank account being temporarily frozen. The employer proposed to change the payment intervals. This was rejected by the complainant. It is common case that the respondent resolved the non-payment of wages issue by September 2021 and the employee was paid all that was due to him. The complainant continued to receive his wages thereafter on a weekly basis until termination of employment. Accordingly, the matter was resolved by September 2021.

I must be satisfied of my jurisdiction to investigate this complaint by reference to the relevant legislation and the nature of the complaint.  This is a complaint under the Terms of Employment (Information) Act 1994 (“the 1994 Act”). The 1994 Act places an obligation on employers to inform employees of the conditions applicable to the contract or employment relationship. I find that this complaint, which relates to non-payment of wages for a period and a proposal to change the frequency of payment intervals, does not fall within the remit of the 1994 Act.  The complaint is based on a misunderstanding of the Acts. I find that this complaint is not well-founded.

CA-00045719-010 - Persons Performing Mobile Transport Activities

The employee referred a complaint under S.I No. 36 2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. The complainant did not particularise any specific complaint under this Regulation. The complainant selected this complaint on the advice of his solicitor at the time.

These Regulations apply to mobile workers and self-employed drivers, participating in road transport activities to which either the Council Regulation or the AETR applies. It is common case that the complainant is not a mobile worker, or a self-employed driver. I find that the complainant does not come within the scope of S.I No. 36 2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. I find that this complaint is not well-founded.

CA-00045719-011 – Employment Equality

The Employment Equality Acts 1998 to 2015 (“the Acts”) promote equality in the workplace and provide protection against discrimination, harassment, and victimisation. An employer cannot discriminate against an employee in relation to several areas including conditions of employment. The Acts prohibit discrimination on nine grounds, including race. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on one of the nine grounds. The employee must demonstrate that they have been treated less favourably than a comparator. The Acts also prohibit any form of unwanted conduct related to any of the discriminatory grounds. This is referred to as harassment.

Section 85A(1) of the Acts provides:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The complainant is required to establish facts from which discrimination can be inferred. It is only when this burden is discharged does the burden shift to the respondent to show that no unlawful discrimination took place. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of this evidential burden on a complainant and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Therefore a complainant must establish both the primary facts upon which they rely and that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy (EDA 21/2008), the Labour Court stated:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

To determine whether the complainant has established a prima facie case a three-tier test is employed: (1) the complainant must establish that he is covered by the relevant discriminatory ground; (2) he must establish that the specific treatment alleged has actually occurred; and (3) it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

The argument that mere membership of a protected class and difference in treatment is sufficient for a complainant to meet his or her burden of proof in terms of s 85A was rejected by the Labour Court in Valpeters.

The complainant alleges he was treated less favourably on grounds of race when he was harassed on 12 August 2021 by Mr Shad. The complainant alleges that he was asked to do things outside of his job description and was accused of conspiring with one director to undermine the other director. The complainant stated that he felt if he did not comply with this request he would not be paid. The complainant felt he was being treated with indifference by Mr Shad and that the company could survive without him if he did not do as he was told. The complainant perceived this behaviour as being done to him because he was of a different race.

I understand that the complainant found the requests made by Mr Shad to be unpleasant, and I appreciate that it was unfair that the complainant should be put under pressure to comply with such requests, however, I am satisfied that the making of these requests had nothing to do with the complainant’s nationality but rather because he was based in the Irish office and had access to the required information. Accordingly, I find that the complainant has not established a prima facie case of discrimination.

CA-00051747 – 001 – Unfair Dismissal

The burden of proof to establish that resignation was not voluntary rests with the complainant. There are two tests contained within the definition of constructive dismissal at s 1(b) of the Unfair Dismissals Acts 1977 - 2015, either or both may be invoked by an employee. The complainant in this case is relying on the contract test. Either test may be applied by the Workplace Relations Commission.

Section 1 of the Unfair Dismissals Acts 1977 – 2015 defines dismissal, which includes at (b):

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer . . . .”

Where the contract is terminated by the employee, there is only a dismissal within the meaning of s (1)(b) if, “because of the conduct of the employer”, the employee was “entitled” to, or it was “reasonable” to terminate the contract of employment. Accordingly, the question of the dismissal must be considered under “entitlement” and/or “reasonableness”.

The contract test is used to assess entitlement to terminate the contract and was summarised in a UK Court of Appeal decision by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.C.R. 121(cited in Berber v Dunnes Stores [2009] IESC 10) as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

An employee may be entitled to terminate the contract where the employer engages in conduct which results in a fundamental breach of the contract, or which indicates that the employer no longer intends to be bound by the terms of the contract. A general term is implied into every contract of employment that the employer will not impair the ‘trust and confidence’ of the employee. In Malik v Bank of Credit and Commerce International [1997] 3 All ER 1 (cited in Berber v Dunnes Stores [2009] IESC 10), Lord Stein stated: “The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust or confidence between employer and employee”. In Malik the threshold was held to be high - it must “destroy or seriously damage” the trust between the parties, however, it is not essential that the employer be aware of the effect of the conduct. Nor that they intended such an effect.  Similarly In Joyce v Brothers of Charity Services [2009] ELR 328, the Employment Appeals Tribunal held that the conduct “. . . cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee”.

The reasonableness test “. . . asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, she is justified in leaving . . . ” (Cedarglade Limited v Tina Hilban, UDD 1843).

Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v Lootah & Others, UD1219/2013).

To succeed in this claim, the complainant must establish the respondent engaged in conduct which was a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract and/or that the employer’s behaviour was so unreasonable that the complainant was justified in leaving.

The respondent submitted that the complainant resigned on foot of two emails relating to incorrect payslips (a matter which the respondent had committed to resolving) and that the non-payment of wages was a temporary matter that had been resolved months earlier. It is the complainant’s case that over a period of 6 months, the respondent engaged in ongoing unreasonable conduct which seriously undermined his trust and confidence in the respondent. The complainant felt he had no option but to resign his position. The unreasonable behaviour complained of included failure to pay wages due for a period; phones being cut off; accusations of conspiracy; the provision of incorrect payslips and the failure to pay taxes due on wages.

In Berber v Dunnes Stores Ltd [2009] 20 ELR 61, it was held by the Supreme Court that in determining if there has been a breach in the implied contractual term of mutual trust and confidence, an examination of the conduct of both the employer and employee much be examined as a whole, and the cumulative effect of the conduct must be looked at. The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be viewed objectively, reasonably, and sensibly to determine if it is such that the employee can no longer be expected to tolerate the behaviour.

The question to be considered here is whether the cumulative effect of all the interactions between the respondent and the complainant crossed a threshold to damage the relationship to such an extent that it was reasonable for the complainant to resign. I find in this case that it did. The complainant was caught in the crossfire of a serious dispute between the two directors of the company and placed in an impossible position. The complainant found himself in a situation where the director he reported into had left the jurisdiction; his wages were not paid (albeit temporarily); the rent for the premises was not being paid; phones were cut off; he was accused of conspiracy; and customers were seriously concerned about the future of the company. The respondent did not deny any of the foregoing and acknowledged that the atmosphere was not pleasant, that there was little communication, and everyone seemed to be working in silos. The last straw for the complainant was when he discovered his taxes were not being paid and his payslips were incorrect. The complainant understandably had loss all trust and confidence in the respondent and had become very concerned for his livelihood and the future of the company.

It is well settled law that an employee must make reasonable efforts to bring the grievance to the attention of the employer before resigning. In O’Gorman v Glen Tyre Company Ltd (UD2314/2010), the Employment Appeals Tribunal noted that “it is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer be given an opportunity to resolve the issues”. At a minimum the employee will be expected to utilise the company grievance procedure.

However an employee may be justified in resigning without utilising the grievance procedure in particular circumstances. In Mr O v An Employer (no. 2) [2005] 16 ELR 132, the court accepted “. . . that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal”.  In Schonfield v. West Wood Club Clontarf Ltd (UD1013/2013), the complainant had no one to complain to about the conduct of the General Manager. The Employment Appeals Tribunal upheld the complaint of constructive dismissal.

It is common case that the complainant in this case did not invoke the grievance procedure. The complainant stated that he never received a grievance procedure and further it would have been futile to raise a grievance as there was no one to complain to. I am satisfied that the only persons the complainant could have raised his grievance with was either of the two directors. Mr Shahzad had returned to Ireland and whilst he may have been trying to get back on track, I find that it was reasonable for the complainant to have lost all trust in Mr Shahzad and Mr Shad at this stage, especially after a second opportunity to rectify payslips failed to address the complainant’s concerns.

In conclusion, I find that the cumulative effect of the respondent’s interactions with the complainant crossed a threshold such that the complainant was entitled, and it was reasonable for the complainant, to terminate his contract of employment within the meaning of s 1(b) of the Unfair Dismissal Acts 1977 – 2015 and that the complainant was unfairly dismissed.

Section 7(1)(c)(i) of the Unfair Dismissal Acts 1977 – 2015 stipulates that where an employee incurs financial loss attributable to the dismissal, an award of compensation can be made in respect of the loss as is just and equitable having regard to all the circumstances. Financial loss includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.

The complainant resigned his position on 24 January 2022. At the time of termination, the complainant was earning €38,000 per annum. The complainant secured a new job on 31 January 2022 on a salary of €50,000. Therefore the complainant’s actual loss is confined to 6 days which I calculate to be €876.92.

CA-00051747-003 - Annual Leave

The complainant stated that he did not receive payment for 10 days annual leave accrued but not taken on date of termination. The respondent submitted that an annual leave year is April to March and that the complainant had taken all leave accrued. The complainant stated that the annual leave year in the respondent business was January to December and that on 24 January 2022 he was owed 10 days annual leave.

Section 19(1) of the Organisation of Working Time Act 1997 (“the 1997 Act”) provides:

“. . . an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)”.  

Section 23(1)(a) of the 1997 Act provides:

“Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

The respondent did not produce records of annual leave accrued or taken. Where records are not kept in the prescribed from, the onus of proving that the provisions of the 1997 Act have been complied with rests on the respondent. The respondent has not discharged that burden in relation to this complaint.

The complainant referred this complaint in relation to unpaid annual leave to the Workplace Relations Commission on 19 July 2022. Therefore the cognisable period covered by the claim is the six-month period from 20 January 2022 until 19 July 2022. The complainant was dismissed on 24 January 2022 which falls within the cognisable period.

The leave year for the purpose of determining if an employee received their statutory entitlements is that prescribed by the 1997 Act, a year starting on 1 April and ending on 31 March the following year. Any contravention of the 1997 Act arising from the respondent’s failure to pay the complainant in respect of outstanding annual leave on the cessation of his employment accrued within the period from 1 April 2021 to 24 January 2022. I cannot consider the respondent's failure to pay the complainant in respect of annual leave outside of this period and I cannot have regard to any leave entitlement more than the statutory leave amount provided for under s 19.

The complainant accrued 16.7 days annual leave within the period of 1 April 2021 until 24 January 2022. The complainant stated that he had already taken 10 days leave. Accordingly, the complainant was due 6.7 days pay in lieu of statutory leave accrued but not taken on termination of employment. I find that this complaint is well-founded, and that the complainant is entitled to payment of €979.23 in respect of accrued annual leave entitlements on the cessation of his employment.

CA-00051747-002 - Payment of Wages

The complainant stated he worked two back weeks on commencement of employment which was due for payment on termination of employment. Mr Shahzad was unsure if the complainant was due two weeks wages in arrears.

Section 1 of the Payment of Wages Act 1991 (“the 1991 Act”) defines wages as:

“. . . any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise . . . .”

Section 5(6) the 1991 Act provides:

“Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Section 6 (1) of 1991 Act (as amended) provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding-(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that-(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment . . . “

The complainant gave a cogent account of being owed two weeks wages in arrears that fell due to be paid on termination of employment. This was not contradicted by the respondent. I therefore find that the complainant is owed €1,461.54 in unpaid wages.

CA-00045719-009 – Terms of Employment

I decide that this complaint is not well-founded.

CA-00045719-010 - Persons Performing Mobile Transport Activities

I decide that this complaint is not well-founded.

CA-00045719-011 – Employment Equality

I decide the complainant was not discriminated against on grounds of race.

CA-00051747 – 001 - Unfair Dismissal

I decide that the complainant was unfairly dismissed, and that the respondent shall pay to the complainant compensation of €876.92.

CA-00051747-003 - Annual Leave

I decide that this complaint is well-founded, and I award the complainant €979.23 in respect of accrued annual leave entitlements on the cessation of his employment.

CA-00051747-002 - Payment of Wages

I decide that this complaint is well-founded, and the respondent shall pay to the complainant compensation of €1,461.54.

Constructive dismissal. Payment of wages. Annual leave.